Ban the Box and Criminal Record Laws

Employers and HR Managers are on constant alert for changes to state and federal background check regulations to prevent discrimination in hiring practices and screening laws. This includes the evolving Ban the Box laws.

The phrase “Ban the Box” was coined by groups in a civil rights campaign on behalf of ex-offenders who frequently were unable to secure or were limited in the jobs for which they could apply or be hired.

The underlying concept was if an ex-offender could not find a job, a higher percentage of those people would tend toward recidivism. So, instituting more advantageous hiring policies would benefit society by fewer ex-offenders backsliding.

Advocates of the program agree to its necessity because of stricter laws governing drug crimes—which may have been the result of a wrong decision in an applicant’s youth.

Those who disagree argue it exposes their businesses and employees to higher risk and potential crime. Some propose it could also expose employers to more lawsuits from unsuccessful candidates. However, those who wished to quiet the campaign may have inadvertently enforced the Streisand Effect on it.

Either pro or con, there is an official guidance offered by the EEOC. The guidance provides details (in Section III, A.) regarding contextual framework for use of criminal record-screening.

Criminal Record

As with the Ban the Box trend, employers are expected to consider an applicant’s qualifications before learning about their criminal history. To date, more than 150 cities and counties and 30 states have adopted the fair chance practice.

States, too, have included their interpretations to the ban the box and criminal record checks, such as how long after the criminal history the employee is applying, and how grave was the offense. These amendments help the employer to assess individuals concerning the duties inherent to the job.


Data Screening is a Certified Women’s Business Enterprise that has offered business-to-business employment and tenant screenings to human resource professionals and business owners, including staffing companies, for two decades. Among other organizations, they are members of the ASA (American Staffing Association), SHRM (Society for Human Resource Management) and the NAPBS (National Association of Professional Background Screeners).


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